Unfair dismissal claim out of time despite early ACAS conciliation

Background

Before lodging most employment tribunal claims, an employee must contact ACAS to start a process known as Early Conciliation. This allows the parties a chance to resolve the issue without going to a tribunal.

To make sure that the conciliation process doesn’t eat into the time available to bring a claim, there is a rule that pauses the usual three-month deadline for bringing a tribunal claim while conciliation is ongoing. This is often referred to as the ‘stop the clock’ rule.

However, in dismissal claims, that three-month deadline doesn’t start until the employee’s employment has actually ended. This date is referred to as the effective date of termination, or EDT. It is usually the last day the employee works under their contract, or the final date of a notice period.

What were the facts of the case?

In the case of Raison v DF Capital Bank Ltd and others, the employee was dismissed and brought a claim of unfair dismissal. However, she had started the ACAS Early Conciliation process a few days before her dismissal took effect. Conciliation then continued for just under two weeks, ending after her employment had formally ended.

She submitted her tribunal claim a little over three months after her employment ended. She argued that the claim was still in time, because the full period of Early Conciliation should be excluded from the time limit.

The employer disagreed. Their position was that only the part of the conciliation period after her employment ended could be excluded. If that interpretation was correct, the claim had been submitted three days too late.

The employment tribunal agreed with the employer and ruled that the claim had been brought out of time.  The claimant appealed to the EAT.

Decision

The EAT confirmed that the ‘stop the clock’ rule only operates once the three-month time limit has actually started to run. This means that if an employee begins Early Conciliation before their employment has ended, those days do not extend the time limit for bringing a claim.

The time limit is only paused during the part of the conciliation period that falls after employment has ended. In this case, only some of the conciliation period occurred after the end of employment, so the claim was three days late.
This is an important clarification, as there had previously been conflicting decisions at tribunal level on this point.

Learning points for employers

This case clarifies how the tribunal calculates time limits where an employee starts Early Conciliation before their employment ends. Employers should be aware that only the period of conciliation that takes place after the end of employment will pause the clock for the purposes of the three-month time limit.

This may affect the timeframe in which a claim can be brought, even where an employee has started conciliation promptly. It remains important to keep clear records of dismissal dates and conciliation periods to assess any limitation arguments at an early stage.

For more information or advice, please contact Michael Halsey in our Employment team.